- 1 - BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of ) ) TELEPHONE COMPANY - ) CABLE TELEVISION ) CC Docket 87-266 Cross-Ownership Rules ) Sections 63.54 - 63.58 ) COMMENTS OF THE ELECTRONIC FRONTIER FOUNDATION The Electronic Frontier Foundation (EFF) respectfully submits the following comments in response to the Further Notice of Proposed Rulemaking (NPRM) and Notice of Inquiry (NOI) in the above captioned matter. The EFF is a public interest organization established in 1990 by pioneer developers of computer software and hardware and members of the computer networking community to educate the public about the democratic potential of new computer and communications technologies. Drawing on the experience of our hundreds of members across the country, the EFF seeks to develop and promote public policies that will maximize freedom, competitiveness and civil liberties in the electronic social environments being created by new computer and communications technologies. The EFF has been arguing for a telecommunications infrastructure guided by the following principles: establish an open platform for innovation in information services that is ubiquitous, affordable and includes a critical mass of features; promote competition in local exchange services; promote free expression by reaffirming the principles of common carriage; foster innovations that make networks and information services easy to use; protect personal privacy; and preserve and enhance socially equitable access to communications media. Based on that perspective, the EFF believes that the Commission's proposed "video dialtone" model for integrating the delivery of video and non-video services by telephone companies (telcos) on a common carrier basis reflects a sound and foresighted approach. In particular, the EFF commends the Commission's stated goals in this proceeding and the core objectives the Commission has proposed for implementation of the video dialtone model. This framework should yield a policy blueprint that can foster wideranging benefits to the public and advance valuable public interest objectives. The EFF nevertheless wishes to raise several initial concerns in response to this proceeding, which, if addressed, would increase the prospects that the Commission's stated goals and objectives would be achieved and that the benefits of the system the Commission is describing would be widely shared. I. The framework for the Commission's video dialtone proposal embodies highly desirable goals and objectives that will advance the public interest. The Commission has crafted a policy base that will provide an excellent yardstick against which policy formulations can be measured and which appears especially likely to foster benefits for the American public. The Commission's reformulated goals in this proceeding are: 1) to promote an advanced public infrastructure available at reasonable charges (NPRM at 7); 2) to foster competitive markets to meet advanced communications needs (NPRM at 8); and 3) to advance the bedrock First Amendment value of diversity of information sources (NPRM at 9). The EFF unequivocally supports each of these goals as appropriate to this proceeding. In addition, the Commission has adopted a common carriage-based approach.1 The EFF believes that expanding common carriage in new electronic media is particularly far-sighted. As Professor Eli Noam of Columbia University has pointed out in testimony before this Commission, "[C]ommon carriage is the practical analog to [the] First Amendment for electronic speech over privately-owned networks, where the First Amendment does not necessarily govern."2 In the rich, multimedia environment contemplated in this proceeding and fast approaching in the marketplace, an expanded common carriage obligation will be the surest means to extend and preserve essential First Amendment protections. Third, the Commission has proposed that the implementation of video dialtone should: facilitate competition in the provision of services, be easy for the average person to use, and be sufficiently flexible to accommodate new technological developments. (NPRM at 24) The EFF believes these "core objectives" accurately describe the principal criteria for implementing such a program, and provide a desirable benchmark for specific implementation strategies. However, the EFF would like to clarify the Commission's "ease of use" objective to ensure that the Commission is referring to both the average person's ease of use as an information provider as well as the ease with which that person can become an information consumer. Market forces should readily address the issue of the ability of a prospective consumer to access desired information: information providers and network operators have a shared interest in ensuring that the available goods and services can be readily retrieved by the average user. However, some additional measure of Commission attention may be needed to ensure that prospective providers will also find the system easy to use, since untended market forces may not encourage the provider's ease of use when there is but one conduit, as is contemplated here. In addition, ease of use for providers will substantially advance the Commission's stated interest in "fostering a diversity of information sources for the American public [which] should be a fundamental tenet underlying all policy decisions in this area." (NPRM at 9, cite omitted.) II. Any consideration of video dialtone should be integrated with related matters now pending before the Commission. While the Commission's proposal rests on a sound policy base, it fails to take into account other proceedings pending before the Commission, the outcome of which could have a significant outcome on the telecommunications infrastructure described in this proceeding. For example, the EFF urges the Commission to integrate its consideration of these issues with the concurrent Notice of Inquiry, In the Matter of Intelligent Networks .3 In that docket, the Commission is exploring emerging telecommunications network design and "future network capabilities." (Intelligent Networks at 1) The information collected in that proceeding will have direct relevance to the assessment of the Commission's video dialtone proposal inasmuch as the design and implementation of such a model will rest on emerging network design, future network capabilities, and issues such as network modularity. If the Commission does not review the material gathered in the instant proceeding through the lens (or lenses) provided by the Intelligent Networks proceeding, it risks promulgating a policy that may have little to do with the network architecture and capabilities already on the horizon. III. The Commission's interest in video dialtone may cause it to overlook transitional telecommunications infrastructure deployment that could speed the arrival of many benefits to American consumers. Although the Commission's proposal does not prescribe specific network designs or technologies4, it clearly gestures toward broadband capacity (NPRM at 13), switched broadband architectures(NPRM at 14), and optical fiber transmission paths (NPRM at 18). In its excitement about the future, the Commission may forgo an invaluable opportunity for the American public as well as for regulators. With advances in signal processing and digital compression, many of the advantages formerly thought to be possible only with fiber may soon be within reach on traditional copper-based infrastructure. In light of these technological advances, the EFF believes that it is appropriate to take a "new look" at integrated services digital networks (ISDN) as a transitional infrastructure. ISDN, which is available today, could be the platform for the integration of electronic services on a network already available to every person on the public switched telephone network. While certain technological barriers still remain,5 the widespread availability of an ISDN platform, positioned as a residential or personal service, could significantly advance many of these same objectives in a much shorter time frame6 and provide information service providers, the public and the Commission with invaluable experience of consumer interests, preferences, and habits in the use of advanced electronic services. The using public must learn to walk before it can run, and the availability of ISDN, which could be widespread in three to five years,7 could provide the environment conducive to this growth. In this regard, the EFF respectfully suggests that the Commission consider how a policy that encouraged ISDN availability today would create market experience and market demand for a video dialtone system tomorrow, instead of relying solely on "governmental edict . . . to stimulate the construction of and use of advanced telecommunications networks."8 IV. The Commission's video dialtone model will not ensure equitable access to information networks. Although the Commission has announced a goal of enhancing diversity of information sources, the video dialtone proposal may shoulder out one of the most vigorous sources for that diversity: non-commercial and individual information providers. The Commission relies on the market to allocate access opportunities, but experience demonstrates that the market does not necessarily provide equitable access for all those who wish to speak via electronic media. In its current form, the Commission's proposal of non-discriminatory terms and conditions (NPRM at 27) may have the perverse effect of erecting insurmountable barriers for new, diverse voices to become information sources. If the tariffs for providers are set based on the assumption that the customers are primarily Hollywood production studios, today's cable multiple system operators functioning as program packagers, or advertiser-supported, corporately subsidized computer networks such as Prodigy, then smaller providers will be effectively excluded. In the computer field with which EFF is most familiar, the crucial role played by the Internet is instructive. The Internet is a nationwide network for computer communication, originally developed for use by university-based researchers. Transmission of information is without direct charge to the person who sends the information. As a result, widespread interest in the Internet has developed, stimulating use of the network and growing awareness of and interest in other computer networks. At present, the Internet and related e-mail systems serve millions of users in the academic, government, scientific, and commercial communities with both messaging services and related electronic bulletin boards. In addition, it has allowed the development of actual experience in how people use their computers to communicate and stimulated groundbreaking work in network design.9 Similarly, to promote a diversity of information sources, the Commission should tailor its proposal to ensure that it serves not only commercial users, but non-commercial and even individual information providers. Such users are being served in both the computer context (as described above) and the cable-based video context (through public access channels available on an estimated 2000 cable systems), and so it would diminish the diversity of information sources if the interests of these users were not included in the Commission's proposal. Such interests could be met by ensuring low or no-cost access for non-commercial, non-profit or individual information providers. Models might include the postal service (a common carrier that has stepped tariffs with, for example, lower rates for non-profits), or lifeline rates for telephone service (reduced rates for low-income individuals to ensure that they can get access to what might be called "audio dialtone"). V. Conclusion The Commission's video dialtone proposal promises an exciting array of services across diverse media, integrated on one common carrier. The principles guiding this proposal are parameters broad enough to give the Commission flexibility, while indicating precisely the values that tomorrow's integrated networks should be fostering. As a result, the Commission has created a powerful metaphor for the multimedia telecommunications environment of the future. With additional adjustments and integration with other network possibilities and developments, the Commission's proposal could unlock the rich potential of telecommunications networks in every area of American life. The EFF applauds the Commission's leadership in this important area, and hopes that experience, comments and suggestions from the millions of computer- based communicators will be incorporated into the advanced telecommunications infrastructure under discussion before this Commission. We look forward to providing additional material to the Commission that will further specify proposals for bringing this exciting future to all Americans. Respectfully Submitted, ____________________ February 3, 1992 Jerry Berman, Director Andrew Blau, Staff Associate, Telecommunications Policy Electronic Frontier Foundation 1001 G St. NW, Ste. 950E Washington DC 20001 Tel.: +1 202 347 5400 Internet: jberman@eff.org blau@eff.org 1 "Our view of video dialtone is that it is an enriched version of video common carriage . . . ." NPRM at 10 2 Noam, Eli M. Testimony at "Networks of the Future" en banc hearing, May 1, 1991. 3 CC Docket No. 91-346, released December 6, 1991 (hereinafter Intelligent Networks). 4 See, for example, NPRM at 18: "we do not intend . . . to endorse any particular medium or network architecture." 5 Affordable terminal devices for residential use are not yet available, for example. 6 The EFF emphasizes, however, that ISDN is not a substitute for fully switched broadband networks of the future. We propose it simply as an interim measure that could stimulate widespread interest in and use of enhanced services through the telecommunications network. 7 Compare, for example, the predictions of Bellcore officials that the requisite switches for implementing ISDN nationally will be in over 50% of telco central offices within three years. Interview with Bellcore officials, on file with EFF. 8 See NPRM at 8. 9 See Building the Open Road: The NREN as a Test-Bed for the National Public Network, by Mitchell Kapor and Jerry Berman. Unpublished paper, EFF.